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We Have Assisted in the Startup of Some of the Most Successful E-Commerce and Electronic Entertainment Companies in the World

Ira P. RothkenIn addition to our robust litigation practice we assist electronic entertainment, high technology, and e-commerce companies in their business, startup, and legal transactions. For example, since the inception of the "commercialized" internet in the mid 1990s, we have represented some of the largest and most successful web sites in the world on a huge range of matters from startup issues to risk reduction strategies to e-commerce policies and agreements. In many instances we were called upon to handle issues where there was no clear precedent and thus we had to innovate a solution.

We have also helped start numerous successful electronic entertainment and videogame companies including Nihilistic Software, Pandemic Games, Telltale, and Arenanet. Ira P. Rothken, a member of IGDA, has spoken multiple times on how to start a videogame development company at the Computer Game Developers Conference (CGDC). Here is a sample of videogame development transactions in which we assisted our clients:

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Megaupload, Kim Dotcom, and other interested parties filed submissions today in Federal District Court in the Eastern District of Virginia opposing the US DOJ's attempt to use the Fugitive Disentitlement Doctrine as a procedural method of taking all of Kim Dotcom's and the other parties' assets prior to trial and without any hearing on the merits of the underlying criminal claims. The motion was filed in the context of a forfeiture proceeding.

Here is an excerpt from the opposition brief filed today:

With its Motion to Strike (“Motion”), the United States Government is seeking to ward off inquiry by this Court into essential legal questions, including whether the Court has jurisdiction over the relevant subject matter; whether it has jurisdiction over the relevant foreign assets; whether the foreign assets at issue are traceable to any alleged crimes; and whether the alleged crimes even amount to crimes. Only by invoking “fugitive disentitlement” might the Government skip past glaring, fatal defects in its supposed case for civil forfeiture and obtain an unjust result that should otherwise be beyond reach. If the Government has its way, then it will win from this Court an order calling for forfeiture of tens of millions of dollars in Claimants’ foreign assets without the Court so much as permitting adversarial contest on the obvious, fundamental jurisdictional and merits questions otherwise looming before it.

According to the Government’s Motion, the fugitive disentitlement doctrine yields this disquieting result, depriving Claimants of threshold standing to contest forfeiture of their own assets abroad and trumping even threshold inquiry into jurisdiction. But the Government thereby distorts the concept of “fugitive” status beyond recognition. These Claimants never fled the United States to evade prosecution.

With its Motion to Strike (“Motion”), the United States Government is seeking to ward off inquiry by this Court into essential legal questions, including whether the Court has jurisdiction over the relevant subject matter; whether it has jurisdiction over the relevant foreign assets; whether the foreign assets at issue are traceable to any alleged crimes; and whether the alleged crimes even amount to crimes. Only by invoking “fugitive disentitlement” might the Government skip past glaring, fatal defects in its supposed case for civil forfeiture and obtain an unjust result that should otherwise be beyond reach. If the Government has its way, then it will win from this Court an order calling for forfeiture of tens of millions of dollars in Claimants’ foreign assets without the Court so much as permitting adversarial contest on the obvious, fundamental jurisdictional and merits questions otherwise looming before it. According to the Government’s Motion, the fugitive disentitlement doctrine yields this disquieting result, depriving Claimants of threshold standing to contest forfeiture of their own assets abroad and trumping even threshold inquiry into jurisdiction. But the Government thereby distorts the concept of “fugitive” status beyond recognition. These Claimants never fled the United States to evade prosecution...

Megaupload, Kim Dotcom, and other interested parties filed a motion today in Federal District Court in the Eastern District of Virginia asking the court to dismiss the copyright claims that make up the core of the US Government's criminal case against the defendants. The motion was filed in the context of a forfeiture proceeding. The motion, if successful, could have a serious adverse impact on the viability of the Government's novel criminal theories.

Here is an excerpt from from the motion to dismiss submissions filed today:

Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process.

Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip robust defense in the criminal proceedings.

But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. That is the nonexistent crime for which individual defendants were arrested, in their homes and at gunpoint, back in January 2012. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets.

Mega.co.nz removed Defense Distributed's 3D gun design files from the cloud while export regulations and other laws are being evaluated by the United States and others. Mega decided under the circumstances, given the potential security risks to society, the prudent thing to do was to err on the side of caution and remove the files. News story from Computerworld here.

Profile Technology Ltd today filed a lawsuit in Superior Court in California alleging that Facebook acted illegally by terminating a 2008 custom agreement that gave Profile's search engine and social networking site access to public Facebook data. The complaint further alleges that when Profile resisted Facebook demands for a lopsided new agreement Facebook retaliated against Profile by turning off Profile apps and spreading misinformation causing significant injury to Profile. The complaint asks for damages and injunctive relief according to proof and can be found here.

Ira P. Rothken, founder of the Rothken Law Firm, has written for the Home Office Computing/Small Business Computing Magazine "Legal Matters" Column. Mr. Rothken has written numerous articles on protecting small businesses and the laws of "e-commerce." Mr. Rothken has appeared as a guest legal expert on television and radio including CNNfn (fax/e-mail marketing issues), CNN (internet gambling), Bloomberg (internet copyright law), CNN (internet privacy), KQED radio (computer keyboard injuries), FOX (internet gambling), NBC (internet copyright), CBS (internet privacy), CNET radio (internet copyright), KTVU Silicon Valley Business Report (software license agreements), TechTV (internet law), CNBC (internet copyright law), and Court TV (internet gambling issues and copyright litigation), and has been quoted in numerous publications including legal newsletters, newspapers (Wall Street Journal, NY Times, San Jose Mercury News, San Francisco Chronicle, Newsday), magazines, and law review articles. In addition, Mr. Rothken has spoken at numerous conferences and seminars on internet & e-commerce law including the IAEM Convention, the Computer Game Developers Conference (CGDC), the Annual Meeting of the Free Speech Coalition, the Recorder Legal Newspaper Roundtable, the Practicing Law Institute in San Francisco, California, the Sedona Conference, and the Privacy and American Business Conference in Washington, DC.